We Don't Need No Stinking Warrant: The Disturbing, Unchecked Rise of the Administrative Subpoena

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We Don't Need No Stinking Warrant: The Disturbing, Unchecked Rise of the Administrative Subpoena

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When Golden Valley Electric Association of rural Alaska got an administrative subpoena from the Drug Enforcement Administration in December 2010 seeking electricity bill information on three customers, the company did what it usually does with subpoenas – it ignored them.

But by law, utilities must hand over customer records – which include any billing and payment information, phone numbers and power consumption data – to the DEA without court warrants if drug agents believe the data is "relevant" to an investigation. So the utility eventually complied, after losing a legal fight earlier this month.

Meet the administrative subpoena (.pdf): With a federal official's signature, banks, hospitals, bookstores, telecommunications companies and even utilities and internet service providers – virtually all businesses – are required to hand over sensitive data on individuals or corporations, as long as a government agent declares the information is relevant to an investigation. Via a wide range of laws, Congress has authorized the government to bypass the Fourth Amendment – the constitutional guard against unreasonable searches and seizures that requires a probable-cause warrant signed by a judge.

"I think this is out of control. What has happened is, unfortunately, these statutes have been on the books for many, many years and the courts have acquiesced," said Joe Evans, the utility's attorney.

Anecdotal evidence suggests that federal officials from a broad spectrum of government agencies issue them hundreds of thousands of times annually. But none of the agencies are required to disclose fully how often they utilize them – meaning there is little, if any, oversight of this tactic that's increasingly used in the war on drugs, the war on terror and, seemingly, the war on Americans' constitutional rights to be free from unreasonable government trespass into their lives.

That's despite proof that FBI agents given such powers under the Patriot Act quickly began to abuse them and illegally collected Americans' communications records, including those of reporters. Two scathing reports from the Justice Department's Inspector General uncovered routine and pervasive illegal use of administrative subpoenas by FBI anti-terrorism agents given nearly carte blanche authority to demand records about Americans' communications with no supervision.

When the 9th U.S. Circuit Court of Appeals, perhaps the nation's most liberal appeals court based in San Francisco, ordered Golden Valley to fork over the data earlier this month, the court said the case was "easily" decided because the records were "relevant" to a government drug investigation.

With the data the Alaska utility handed over, the DEA may then use further administrative subpoenas to acquire the suspected indoor-dope growers' phone records, stored e-mails, and perhaps credit-card purchasing histories – all to build a case to acquire a probable-cause warrant to physically search their homes and businesses.

But the administrative subpoena doesn't just apply to utility records and drug cases. Congress has spread the authority across a huge swath of the U.S. government, for investigating everything from hazardous waste disposal, the environment, atomic energy, child exploitation, food stamp fraud, medical insurance fraud, terrorism, securities violations, satellites, seals, student loans, and for breaches of dozens of laws pertaining to fruits, vegetables, livestock and crops.

Not one of the government agencies with some of the broadest administrative subpoena powers Wired contacted, including the departments of Commerce, Energy, Agriculture, the Drug Enforcement Administration and the FBI, would voluntarily hand over data detailing how often they issued administrative subpoenas.

The Drug Enforcement Administration obtained the power under the Comprehensive Drug Abuse Prevention and Control Act of 1970 and is believed to be among the biggest issuers of administrative subpoenas.

"It's a tool in the toolbox we have to build a drug investigation. Obviously, a much, much lower threshold than a search warrant," said Lawrence Payne, a DEA spokesman, referring to the administrative subpoena generically. Payne declined to discuss individual cases.

Payne said in a telephone interview that no database was kept on the number of administrative subpoenas the DEA issued.

But in 2006, Ava Cooper Davis, the DEA's deputy assistant administrator, told a congressional hearing, "The administrative subpoena must have a DEA case file number, be signed by the investigator's supervisor, and be given a sequential number for recording in a log book or computer database so that a particular field office can track and account for any administrative subpoenas issued by that office."

After being shown Davis' statement, Payne then told Wired to send in a Freedom of Information Act request, as did some of the local DEA offices we contacted, if they got back to us at all. "Would suggest a FOIA request to see whether you can get a number of administrative subpoenas. Our databases have changed over the years as far as how things are tracked and we don't have access to those in public affairs unfortunately," Payne said in an e-mail.

He said the agency has "never" been asked how many times it issued administrative subpoenas.

Amy Baggio, a Portland, Oregon federal public defender representing drug defendants for a decade, said DEA agents "use these like a doctor's prescription pad on their desk." Sometimes, she said, they issue "hundreds upon hundreds of them" for a single prosecution – often targeting mobile phone records.

"They are using them exponentially more in all types of federal criminal investigations. I'm seeing them in every drug case now," Baggio said. "Nobody is watching what they are doing. I perceive a complete lack of oversight because there isn't any required."

A typical DEA investigation might start with an informant or an arrested dealer suspected of drug trafficking, she said. The authorities will use an administrative subpoena to get that target's phone records – logs of the incoming and outgoing calls – and text-message logs of the numbers of incoming and outgoing texts. Then the DEA will administratively subpoena that same information for the phone numbers disclosed from the original subpoena, and so on, she said.

Often, Baggio said, the records not only show incoming and outgoing communications, they also highlight the mobile towers a phone pinged when performing that communication.

"Then they try to make a connection for drug activity and they do that again and again," Baggio said. "They used a subpoena to know that my client used a phone up in Canada, but he said he was playing soccer with his kids in Salem." That client is doing 11 years on drug trafficking charges, thanks to an investigation, Baggio said, that commenced with the use of administrative subpoenas.

The FBI was as tight-lipped as the DEA about the number of administrative subpoenas it issues.

Susan McKee, an FBI spokeswoman, suggested that some of the bureau's figures for how many administrative subpoenas it has issued, for as many years back as possible, "may be classified."

In a follow-up e-mail, McKee offered the same advice as the DEA.

"I am sorry the statistics you are looking for are not readily available. I would suggest that you explore the FOIA process," she said.

If all of those statistics are classified, that would be very odd. The FBI is required to report annually how often they use the terrorism and espionage-specific administrative subpoenas known as National Security Letters to target Americans.

But those aimed at foreigners are not required to be accounted for publicly. Likewise, FBI anti-terrorism requests for subscriber information – the name and phone numbers associated with phone, e-mail or Twitter accounts for example, aren't included in that tally either, regardless if the account holder is an American or foreigner.

All of which means that, even in the one instance where public reporting is required of administrative subpoenas, the numbers are massively under-reported, according to Michelle Richardson, legislative counsel for the American Civil Liberties Union.

"I think it's ridiculous they won't release the real numbers," she said. Richardson speculated that the government has "something to hide."

Some of the stranger statutes authorizing administrative subpoenas involve the Agriculture Department's power to investigate breaches of the Floral Research and Consumer Information Act and the Fresh Cut Flowers and Fresh Cut Greens Promotion and Information Act. The Commerce Department has administrative subpoena power for enforcing laws relating to the Atlantic tuna and the Northern Pacific halibut. It also has those powers when it comes to enforcing the National Weather Modification Act of 1976, requiring "any person to submit a report before, during, or after that person may engage in any weather modification attempt or activity."

In a 2002 government report, the Commerce Department said it had not used its administrative subpoena powers to enforce the National Weather Modification Act "in the recent past." (.pdf) Susan Horowitz, a Commerce Department spokeswoman, urged Wired to send in a FOIA in a bid to obtain data surrounding how often it issues administrative subpoenas.

Lacking in all of these administrative subpoenas is Fourth Amendment scrutiny – in other words, judicial oversight. That's because probable cause – the warrant standard – does not apply to the administrative subpoena. Often, the receiving party is gagged from disclosing them to the actual targets, who could, if notified, ask a judge to quash it.

And even when they are challenged in court, judges defer to Congress – the Fourth Amendment notwithstanding.

In one seminal case on the power of the administrative subpoena, the Supreme Court in 1950 instructed the lower courts that the subpoenas should not be quashed if "the inquiry is within the authority of the agency, the demand is not too indefinite and the information sought is reasonably relevant."

In the mobile age, one of the biggest targets of the administrative subpoena appears to be the cellphone. AT&T, the nation's second-largest mobile carrier, replied to a congressional inquiry in May that it had received 63,100 subpoenas for customer information in 2007. That more than doubled to 131,400 last year. (AT&T did not say whether any of the subpoenas were issued by a grand jury. AT&T declined to elaborate on the figures.)

By contrast, AT&T reported 36,900 court orders for subscriber data in 2007. That number grew to 49,700 court orders last year, a growth rate that's anemic compared to the doubling of subpoenas in the same period.

In a letter to Rep. Edward Markey (D-Massachusetts), AT&T said it usually always positively responds to subpoenas except when "law enforcement may attempt to obtain information using a subpoena when a court order is required." While there is much confusion as to when a court order is needed, they are generally required for wiretapping and sometimes for ongoing locational data.

Markey's office did not respond for comment.

Many, including Baggio, charge that the government's use of administrative subpoenas is often nothing less than a "fishing expedition." And the courts don't seem to mind.

In the Golden Valley case, the San Francisco federal appeals court said the outcome was a no-brainer, that Congress had spoken.

"We easily conclude that power consumption records at the three customer residences satisfy the relevance standard for the issuance of an administrative subpoena in a drug investigation," the court ruled.

The decision seemingly trumps a Supreme Court ruling in 2001 that the authorities must obtain search warrants to employ thermal-imaging devices to detect indoor marijuana growing operations. Ironically, the justices ruled that the imaging devices, used outside a house, carry the potential to "shrink the realm of guaranteed privacy."

Rewind to 1996, when the 10th U.S. Circuit Court of Appeals affirmed the drug-trafficking conviction of a man arrested aboard an Amtrak train in December 1993. A DEA agent issued an administrative subpoena demanding Amtrak hand over passenger lists and reservations for trains stopping in Albuquerque, New Mexico, where the agent was based.

In another example, a judge sided with the Commodities Futures Trading Commission in 2007, ordering publisher McGraw-Hill to turn over documents concerning data used in one of its publications to calculate the price of natural gas as part of the government's probe into a price-manipulation scandal.

Records obtained by a federal agency don't have to stay with that agency or be destroyed, either. Some of them may be transferred to other agencies if "there is reason to believe that the records are relevant to a legitimate law enforcement inquiry of the receiving agency," according to a Justice Department Criminal Resource Manual.

The records can be transferred to state agencies, too.

But the states may not need the federal government's assistance. They have an undetermined number of statutes authorizing the issuance of their own administrative subpoenas. For instance, most every state has that authority when it comes to investigating child-support cases. (.pdf)

Consider the Boston case in which Suffolk County District Attorney Daniel Conley issued an administrative subpoena in December demanding "subscriber information" for several alleged members of Anonymous as part of an investigation into who sabotaged Boston police's website and released officers' e-mails.

Christopher Slobogin, a Vanderbilt Law School scholar who has written extensively on administrative subpoenas, said the power of the administrative subpoena was born at the turn of the 20th century, when the U.S. began developing the regulatory state.

Administrative subpoenas initially passed court muster since they were used by agencies to get records from companies to prosecute unlawful business practices, he said. Corporations weren't thought to have the same privacy rights as individuals, and administrative subpoenas weren't supposed to be used to get at private papers.

When the Supreme Court upheld that the Federal Trade Commission's administrative subpoena of internal tobacco company records in 1924, Justice Wendell Holmes limited the power to companies, writing that anyone "who respects the spirit as well as the letter of the Fourth Amendment would be loath to believe that Congress intended to authorize one of its subordinate agencies to sweep all our traditions into the fire and to direct fishing expeditions into private papers."

But times have changed.

"In some ways, they were a good thing if you were liberal," Slobogin said of the administrative subpoena. "But they have migrated from corrupt businesses to people suspected of crime. They are fishing expeditions when there is no probable cause for a warrant."